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Indigenous peoples’ rights and the status of forest land in Indonesia

A recent meeting in Indonesia addressed three important issues facing the future of the forests in the country: gazettement of state forest; exclusion of indigenous peoples’ forest from the state forest; and the resolution of forestry conflicts.

The meeting was organised by the Community Chamber of the National Forestry Council, which last week put out a press release together with the NGO HuMa. The press release is available in English below and in Bahasa Indonesia on HuMa’s website.

The first two issues are based on two Constitutional Court Rulings – numbers 45/2011 and 35/2012. Ruling 45/2011 focussed on the more than 130 million hectares of Indonesia’s Forest Zone. Five district heads in Central Kalimantan challenged the designation of their administrative districts as part of the forest zone. In theory, at least, the hundreds of thousands of people living in these districts needed permission from the Ministry of Forestry in Jakarta before they could do anything with their land. The Constitutional Court ruled that the part of the wording of the article in the 1999 Forestry Law granting the Ministry of Forestry control over the land was unconstitutional and unenforceable.

With only 14.2 million hectares of Indonesia’s forest zone formally gazetted, the ruling could bring major changes to the way forests in Indonesia are managed. In a review of the ruling, Daemeter Consulting, Tropenbos International (Indonesia) and Makarim & Taira S. law firm wrote that,

(ii) the future ability of the Ministry of Forestry (MoF) to exert management authority over it, and

(iii) changes to the formal and informal balance of power between central and regional government authorities in determining the allocation of land to forestry versus non-forestry purposes within provincial spatial plans.

Earlier this year, in a landmark ruling for indigenous peoples’ rights in Indonesia, the Constitutional Court ruled that indigenous peoples’ customary forests should not be classed as “State Forest Areas”.

The Community Chamber of the National Forestry Council and HuMa are concerned that too little has happened at the community level to implement these two rulings. Worse, the government is pushing ahead with its Master Plan for the Acceleration and Expansion of Indonesia’s Economic Development (MP3EI). This includes destructive projects such as the MIFEE plantation project in Papua, the Urumuka and Mamberamo hydropower dams in Papua, and plans to expand large-scale mining operations in Central Kalimantan.

Implementation of the two Constitutional Court Rulings is not straightforward. If poorly implemented, the Forest Zone ruling could allow regional authorities to convert forest to oil palm plantations. But as Daemeter Consulting points out, the decision, “creates a unique opportunity to achieve consensus on spatial plans”. Both rulings create an opportunity to respect indigenous peoples’ and local communities’ rights and thus reduce forest conflicts and deforestation. Meanwhile, MP3EI projects are already increasing both conflict and deforestation.

The government must step up action to meet the constitutional rights of indigenous people and local communities as part of the process of determining the status of forest land

JOINT PRESS RELEASE
Community Chamber of National Forestry Council and HuMa

Jakarta, 4 October 2013. The National Forestry Council People’s Chamber (Kamar Masyarakat Dewan Kehutanan Nasional (KM DKN)) held a meeting in late September to discuss recent developments in forestry policy in relation to indigenous peoples and local communities that have long been marginalised in control over forest land, forest management and the use of forest products throughout Indonesia. The three main issues discussed were how to accelerate the process of determining the status of forest land (implementing Constitutional Court Decision No. 45/2011 and the Memorandum of Agreement between 12 ministries and institutions), the recognition of customary forest and its removal from the state forest estate, and resolving land conflicts connected to forest status.

The People’s Chamber wishes to state its concern over the chronic injustice that has actually become more acute since Indonesia has entered the era of decentralisation and the free market. A shadow of uncertainty hangs over people’s lives because of the arbitrary control the state exerts over forest lands, disregarding human rights.

Recently, the government has only added to this chaos with the MP3EI (Master Plan for Acceleration and Expansion of Indonesia’s Economic Development) which has provoked massive resistance from indigenous peoples and local communities, for example Merauke indigenous people’s opposition to MIFEE (Merauke Integrated Food and Energy Estate), Urumuka and Mamberamo hydro power stations in Papua, and the people of Central Kalimantan’s opposition to that province becoming a centre for large-scale mining. Such projects tend to aggravate conflicts between indigenous or rural communities and companies or the government. In 2012 alone, HuMa recorded 72 cases of forestry-related conflict that were still ongoing, which encompass an area of over 2 million hectares and have already resulted in many deaths.

The People’s Chamber welcomes Constitutional Court Decision 45/2011 which removes the state’s authority to unilaterally establish forest status, which is often arbitrary. The People’s Chamber also welcomes the Memorandum of Agreement between 12 Ministries and Institutions to accelerate the determination of forest status, prevent corruption and resolve forest conflicts, and Constitutional Court decision No. 35/2012 which confirms the existence of indigenous-owned customary forest. Through these policy developments, people are seeing an opportunity to regain their rights to the forests around their village or ancestral land.

Munadi Kilkoda, the People’s Chamber representative from the Lesser Sunda Islands and Maluku Region stated “In the wake of Decision 35/2012, indigenous peoples in several areas have already begun mapping and claiming their customary forest, and some have even begun to rehabilitate damaged forest.” As well as this, rural communities in various parts of Indonesia are making moves to discuss the process of defining forest boundaries at the village level.

However, amidst rising hopes and political aspirations as the 2014 elections approach, the National Forestry Council People’s Chamber feels that the government is not moving fast enough to follow up the Constitutional Court Decisions 45/2011 and 35/2012. The People’s Chamber has yet to see clear positive effects on the ground as a result of these policies and demands swifter efforts to fulfil indigenous peoples and local communities’ constitutional rights through these processes, not only at the national level, but also at the local level. Because of this, the National Forestry Council People’s Chamber demands that the government conducts briefings about the two constitutional court decisions and the Memorandum of Agreement to all functionaries right down to the village level. The government should also create a team to speed up the determination of forest status and remove customary forest from the state forest estate at all levels, which is supported by adequate funding.

“The government must restore indigenous people’s rights over their territory and other natural resources, including customary forest.” sad Hadi Irawan, a delegate to the Chamber from the Kalimantan Region. “This can start by incorporating maps of indigenous territories and participative maps drawn up by villages, which have already been passed on to the Geospatial Information Agency, into national forestry maps,” he added.

“Alongside this, the government must also revise policy about natural resource management and use, such as MP3EI, which have the potential to harm the environment and create new conflicts.” said George Weyasu, Papuan representative to the People’s Chamber, “including renegotiating several natural resource management contracts such as Freeport and BP’s contracts in Papua and West Papua, in a way which involves indigenous people and respects principles of free prior informed consent.”
“The government should also take into account differing vulnerabilities in each region, for example small islands in the Lesser Sunda, Maluku, Bali and Nusa Tenggara areas which are more vulnerable, especially because of the threat of climate change,” said Kamardi, People’s Chamber representative for Bali and Nusa Tenggara.

Speaking of forest management in Java, Adrianto, the People’s Chamber representative from the Java Region, said that the government should audit who controls and manages Java’s forests, because conflicts have arisen that will result in increased poverty. “Forestry law should be valid nationally, and that includes forest land in Java. The procces verbaal method of establishing forest boundaries which was devised by the Dutch is not a valid national law so the government should impose a moratorium on [state-owned forestry company] Perhutani’s control over forest land, and revise forest boundaries in a way that respects people’s rights,” he said.

All of these processes must prioritise methods of consultation as opposed to confrontation, as that can be a way to bridge several different viewpoints. “Indigenous people and local communities already have the knowledge and discipline themselves to manage and protect forests, always based on principles of justice and sustainability,” added Andreas Lagimpu, the People’s Chamber representative from Sulawesi Region.
Below are the People’s Chamber’s demands in full, directed at the government currently in power and also candidates that will compete in the 2014 elections for both the executive and legislative branches of government.

The National Forestry Council People’s Chamber demands that the current government:

Consistently implement the mandate of the Consultative People’s Assembly Decision IX of 2001 concerning agrarian reform and natural resource management which takes into account the capacity of each environment or area and indigenous people’s rights.

Strengthen the rights of communities and indigenous peoples to forest across Indonesia by making changes to Law No 41 of 1999, changing the Conservation Law, and moving faster to determine of forest status ( based on MoA between 12 ministries and institutions) and to implement Constitutional Court Decision 35/2012.

Implement Constitutional Court decision 45/2011 through an audit of forest ownership and forest management in Java, including legal, economic and human rights aspects, which would give a firm foundation that could strengthen community-based forest management and administration.

Implement Constitutional Court decision 35/2012 by issuing a Presidential Instruction which would order relevant ministries and local governments to move more rapidly to identify and acknowledge indigenous people, their territories and their rights.

Issue policy around the issue of conflict resolution which prioritises an approach based on dialogue.

Reassess development projects which have shown signs that they will marginalise communities, whether they are standard economic development projects such as those included in the MP3EI, or development projects created on the back of the Green Economy issue, such as projects connected to climate change.

Reassess and reform contracts and permits for natural resource exploitation where they are unjust, create social conflict or environmental damage.

Demands for political parties which will contest the 2014 elections, and presidential candidates:

Incorporate the demands of the National Forestry Council People’s Chamber into priority political programmes.

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Notes:

The National Forestry Council People’s Chamber is a stakeholder group which represents the interests of communities which live in or near forest land. The People’s Chamber consists of seven representative members, one from each of seven regions (Java, Sumatra, Kalimantan, Sulawesi, Maluku, Papua and Bali-Nusa Tenggara). The Chamber’s role is to discuss and make decisions concerning the dynamics of societal problems related to forestry.

Contacts:

Leonard Imbiri (Head of Community Chamber of the National Forest Council, imbirijerry@gmail.com), 081248820984.